Cal/OSHA Standards Board to Consider Implementing Third Re-Adoption of ETS

04.11.2022

Cal/OSHA’s Standards Board published its proposal to adopt an amended version of its current Emergency Temporary Standard (“ETS”) on April 6, 2022. The Standards Board will vote on whether to adopt the amended ETS at its upcoming April 21, 2022 meeting. If adopted, it is not yet clear exactly when the new ETS would go into effect. It would expire December 31, 2022. The current version of the Cal/OSHA ETS, which went into effect on January 14, 2022, is currently set to expire on May 5, 2022.

The proposed amended ETS contains a number of possible changes to the current regulation (noting, of course, that there may be additional or different requirements at the state or local level that apply in specific settings such as schools or health care settings). Among the key proposed changes are:

• What constitutes a valid COVID-19 test would change. Whereas under the current ETS, a valid COVID-19 test cannot be both self-read and self-administered, unless observed by the employer or a telehealth proctor – under the proposed new ETS, a COVID-19 test taken for return-to-work purposes may be both self-read and self-administered only if another means of independent verification of results can be provided (for example, a time-stamped photo of the employee’s test results).

• The requirement in the current ETS that an acceptable face covering must not let light pass through would be removed. However, the other face covering requirements of the ETS would remain in effect, including that the following are acceptable face coverings: a surgical mask, medical procedure mask, respirator worn voluntarily, or a tightly-woven fabric or non-woven material of at least two layers that completely covers the nose and mouth and is secured with ties, ear loops, or elastic bands that go behind the head.

• The amended ETS would eliminate the ETS’s rules for close contacts, and instead direct employers to follow the current guidance of the CDPH regarding quarantine and any other measures to reduce transmission. Similarly, the amended ETS would adopt the CDPH’s isolation criteria for COVID-19 cases.

• The amended ETS would delete the definition of a “fully vaccinated” employee, which currently is defined as someone two weeks from the completion of their primary (non-booster) vaccination. While the proposed, amended ETS removes distinctions drawn based on whether an employee is “fully vaccinated” or not, the applicable CDPH quarantine standards (which employers must follow in conjunction with the Cal/OSHA ETS) apply different quarantine and return-to-work rules based on an employee’s vaccination status.

• While the current ETS requires employers to make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact in the workplace, the amended version would exempt employers from providing such testing to “returned cases” (i.e., an asymptomatic employee who within the last 90 days recovered from COVID-19).

• Under the proposed new ETS, all employees, regardless of their vaccination status, would need to be provided with no cost COVID-19 testing, during paid time, if they are experiencing COVID-19 symptoms. Currently this testing must only be provided to employees who are not fully vaccinated.

• All employees under the proposed ETS would be able to request a respirator for voluntary use from their employer if working indoors or in vehicles with more than one person, whereas currently only unvaccinated employees may do so.

• As proposed, employees exempted from wearing a face covering when face coverings are otherwise required under the ETS and who cannot wear a non-restrictive alternative (such as a face shield) due to their medical condition, must be tested for COVID-19 weekly.  Currently, the ETS requires such employees to maintain a six foot distance from others (unless fully vaccinated). 

• The proposed ETS eliminates cleaning and disinfecting procedures, which currently require employers to regularly clean frequently touched surfaces and to clean and disinfect items and areas used by a COVID-19 case within their infectious period. Similarly, the definition of a “COVID-19 hazard” would no longer include a reference to objects or surfaces that may be contaminated with the virus.

• Employers would be required to test employees in the exposed group of a “major outbreak” (involving 20 or more employee COVID-19 cases in an exposed group who visited the workplace within a 30-day period), rather than simply making the testing available as per current requirements.

AALRR will continue to monitor developments regarding the Cal/OSHA ETS and other COVID-19-related requirements applicable to California employers. Of course, employers should bear in mind that other requirements, including CDPH and local health department regulations, may apply. Employers with questions regarding the proposed amended Cal/OSHA ETS or other COVID-19-related issues may reach out to the author of this Alert, or their usual employment law counsel.

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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